ATTORNEY GENERAL v. HIP HING CONSTRUCTION CO. LTD.

IN THE COURT OF APPEAL

1993, No. 754
Magistracy Appeal

Headnote

Criminal Procedure -Issue of summons under s8(1) Magistrates Ordinance by computer process - Absence of signature and seal did not render the summons defective - Magistrate erred in concluding that there was "no or no sufficient evidence" before him that the information was properly laid. Appeal allowed.

IN THE COURT OF APPEAL

1993, No. 754
Magistracy Appeal

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JUDGMENT

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Litton, J.A., giving the judgment of the court:

1. This is a Magistracy Appeal which has been reserved for our consideration by a judge of the High Court, pursuant to section 118(1)(d) of the Magistrates Ordinance, Cap. 227. The appeal was by way of a case stated by a magistrate Mr. Z.E. Li on 10 September 1993 on two questions of law, on the application of the Attorney General made under s105 of the Magistrates Ordinance. The two questions of law are in effect as follows:

(i) Whether the magistrate was correct in law in holding that a summons, issued under s8(1) of the Magistrates Ordinance, requiring Hip Hing Construction Co. Ltd. (the respondent) to answer to an information laid by an officer of the Labour Department that the respondent had breached certain provisions of the Factories and Industrial Undertakings Ordinance was invalid; and

(ii) Whether the magistrate was correct in law in holding that there was no or no sufficient evidence before him that the information was properly laid.

2. As can be seen from the form of the summons before us, the summons, requiring the attendance of the respondent in the name of Her Majesty The Queen, was processed by the aid of a computer system known as Caseman which became operational in the magistracies on 1 July 1992. This case goes to the heart of the system, which is responsible for the processing of informations and the issuing of summonses in tens of thousands of cases in the Magistrates Courts each year, and has been rightly reserved for our consideration by the High Court Judge.

Background

3. On 28 June 1993 the respondent appeared before the magistrate Mr. Z.E. Li at the Eastern Magistracy, represented by solicitors and counsel. It was for the trial of an information preferred by an officer of the Labour Department Wong Yeung Kim Ching to the effect that the respondent, being the proprietor of an industrial undertaking in Causeway Bay, had failed to maintain proper safety standards in respect of a passenger hoist, contrary to certain provisions of the Factories and Industrial Undertakings Ordinance. The offence allegedly occurred on 22 June 1992, as is apparent from (i) the information itself set out at the back of the summons, and (ii) on the face of the summons. The information was laid on 15 December 1992: this likewise is so stated both on the face of the summons and on the back. This was well within the statutory time limit of 6 months stipulated in s26 of the Magistrates Ordinance.

The hearing on 28 June 1993

4. The matter went before the magistrate on 28 June 1993.

5. In para 2 of the Case Stated the magistrate says:

"On 28th day of June 1993 the said information was heard by me." This statement is plainly incorrect. As it is clear from para 6 of the Case Stated, the information was never heard. What happened, as we have now been told by counsel, was that when the parties appeared, and before any evidence was called, the magistrate himself raised the question of the invalidity of the summons and pointed to the absence of a signature or facsimile of a signature, and invited argument on the point. Para 6 of the Case Stated says that it was contended on the part of the respondent that:

(a) [The Crown] should prove that the information was validly laid within in the limitation period stipulated by s26 of the Magistrates Ordinance;

(b) That the summons served upon the respondent had not been properly issued in accordance with the provisions of s8 of the [Magistrates] Ordinance".

6. We have been told by counsel that these were in effect the magistrate's own points, as the respondent had wanted the information to be heard.

7. The magistrate then invited the Crown to call evidence as to the laying of the information by the Labour Department officer but the invitation was declined. This led the magistrate to conclude that there was, as he puts it, "no or no sufficient evidence" as to the laying of the information in accordance with s8 of the Magistrates Ordinance: see para 15(e) of the Case Stated.

Issue of summons

8. Section 8(1) of the Magistrates Ordinance state:

"8. Issue of summons to defendant and mode of service thereof

(1) In everycase where a complaint is made to or an information laid before a magistrate or an officer of a magistrate's court who is authorised in writing for that purpose by a magistrate, being a complaint or information in respect of which a magistrate has power to convict summarily ...... it shall be lawful, subject to this Part, for a summons to be issued by a magistrate or an officer of a magistrate's court who is authorised under this subsection. (see Form 1)".

9. What the magistrate had before him on 28 June 1993 was a summons, no different in form from scores of others dealt with by magistrates daily throughout the magistracies since the computerized system came into operation on 1 July 1992. This contained the statement:

"This Summons is issued under the Magistrates Ordinance Cap. 227 in the name of Her Majesty The Queen by a magistrate or an officer of a magistrate's court who is authorised under s8(1) of that Ordinance".

There was no evidence before the magistrate to contradict that statement.

10. The magistrate seems to have based his conclusion that the summons was invalid on one point: Form 1 in the Schedule to the Magistrates (Forms) Rule has, at its foot two things: the alphabets in brackets "L.S." and the word "Magistrate" under a dotted line. The former is an abbreviation of the expression "locus sigilli" and the latter envisages that a summons issued under s8(1) might or would be signed by a magistrate. The summons which brought the respondent before the magistrate on 28 June 1993 did not bear a seal and was not signed by a magistrate. This led the magistrate to conclude as follows: in para 15(c) of the Case stated:

"(c) The summons served on the respondent in this case invalid for two reasons:

(i) The said summons was not in the prescribed form set out in the Magistrates (Forms) Rule Cap. 227 in that it lacked a seal and signature;

(ii) A summons may be issued without considering the merits but it must be issued by a magistrate or an unauthorised officer a bare assertion in the said summons that 'this summons is issued by a magistrate or an officer of the magistrate's court was authorized under s8(1)' and no more is not prima facie evidence of the facts asserted."

11. By the expression "invalid" the magistrate meant, presumably, that the summons was a nullity. He reached this conclusion without having considered the provisions of s37(1) of the Interpretation and General Clauses Ordinance Cap. 1 which says:

(1) Where any form is prescribed by or under an Ordinance, deviations therefrom, not affecting the substance of such forms, shall not invalidate it.

12. Plainly, the substance of the form is not affected by the absence of a signature, because the old requirement of a magistrate's signature or a stamped facsimile of a signature has been expressly removed by the legislature since 1981: see the Magistrates (Amendment Ordinance No. 18 of 1981, section 2). Since that time a summons can be lawfully issued by the authority of an officer of a magistrate's court: there is now no requirement that a magistrate acting as a judicial officer must first consider the information laid before the summons can be issued: see s8(1B)(b) of the Ordinance.

13. Further, whilst s8(1D) provides that every summons issued "shall be in the prescribed form" it does not mean that a deviation (if there be a deviation in this case) which does not go to the substance of the form renders the summons a nullity. Quite apart from s37(1) of the Interpretation and General Clauses Ordinance Cap. 1, which alone is decisive on this point, there is the general rule that "forms in schedule are inserted merely as examples, and are only to be followed implicitly so far as the circumstances of each case may admit": see Craies on Statute Law, 6th Edition, p224.

14. Form 1 in the schedule serves a variety of purposes. Many departments of government and agencies such as the Mass Transit Railway Corporation and the Kowloon and Canton Railway Corporation use the magistrate's courts to enforce the law within their areas of responsibility. Hundreds of informations are accordingly laid on a daily basis. Not all of them are processed through the computer system called CASEMAN. Where the information has in fact been judicially considered by a magistrate before the summons is issued - this would nowadays be a rare case - it would be appropriate for the magistrate to append his signature and to have the summons sealed. Form 1 caters for this possibility as well.

15. Plainly, the summons in this case was not invalid for want of a signature and seal, as the magistrate had concluded.

Laying of information

16. In para 15(a) of the Case stated the magistrate said:

"(a) The burden lies on the Crown to establish that an information was properly made within such period as prescribed by law if the issue is raised by the respondent (The Queen v. Cheung Kwok-cheung (1982) KHLR 126). In this case the respondent has raised the issue."

17. This proposition is plainly wrong, and is not supported by the ratio decidendi in Cheung Kwok-cheung to which the magistrate referred. There the information was, on the face of the summons, laid outside the statutory period, as was the position in Lloyd v. Young [1963] Cr.L.R. 703 on which the court in Cheung Kwok-cheung relied.

18. There is in law a presumption of regularity which governs all processes, without which the functioning of the courts will grind rapidly to a halt. If cannot be right that a mere assertion of an irregularity by a party displaces the presumption and puts an onus on the Crown to prove by evidence that the information has been properly laid. The presumption of regularity is only displaced where there is prima facie evidence pointing to the contrary. Here the respondent in fact never suggested in the court below that the information was not properly laid. On the face of the summons the information complied with s26 of the Magistrates Ordinance.

19. The magistrate concluded nevertheless that the summons did not appear to have been regularly issued. He was, as we have held, plainly wrong in this regard.

20. From this finding the magistrate then concluded (para 15(b) of the Case Stated):

".... but where the summons itself does not appear to have been issued by a magistrate or authorized officers, there must be doubt as to whether information had been laid before a magistrate or an authorized officer".

21. Plainly this conclusion cannot stand.

Conclusion

22. It is difficult to imagine what might have triggered the concern of the magistrate in this case, as the computerized system called CASEMAN used for the processing of informations and the issuing of summonses has been in operation in the magistracies since July 1992, and its scope has been widening ever since to deal with more and more statutory offences. The information in this case was, on the face of the summons, laid well within the statutory period of limitation and the respondent had appeared before the magistrate in answer to the information. The respondent was, we are told, prepared on 28 June 1993 to deal with the information laid. And yet the summons was dismissed by the magistrate unheard.

23. Mr. Hingorani, counsel for the respondent in this court has felt unable to advance any arguments in opposition to the points cogently put in his skeleton argument by Mr. Bruce on behalf of the Attorney General. Rightly so.

24. We would, for the reasons given, hold that the magistrate was wrong in law in respect of both questions posed in the Case Stated, allow the appeal and direct that the information be heard before another magistrate.